Page 89 - 20818_park-B_efi

20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Cyan
20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Black
#20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Yellow
20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Magenta
for money you will not treat yourself properly and people will 1 AnsweR
remember me when they see the wound.
The Rambam (Hilchos Chovel Umazik 2:18) writes as follows: If the It says in theTosefta (Bava Kamma 6:6): If one cut out the fetus with 3
person who damaged him said to him, “I will heal you” or “I have a permission from beis din [because it was endangering the mother’s
physician who heals for nothing,” one pays no attention to him. He life] and caused damage, he is exempt in a human court and his judg-
has to bring an expert physician who will heal him for a fee. Note that ment is given over to the Heavenly Court. Chasdei David explains
#
the Rambam omits the reason brought in the Gemara: “You appear that this refers to a case where the physician had the good intentions
to me like an ambushing lion,” and he writes the two laws (i.e. that a of saving the woman’s life. He had no intent of hurting or damaging
physican must be brought in, and that he must be paid) as one. her, but rather he intended to extract the fetus that was endangering
The Tur (Choshen Mishpat #420) also, like the Rambam, omits the her life. Nonetheless, if he acted without the permission of a beis din
reasoning that the wounded party may claim that the person who and erred and harmed her, he is obligated to pay for the damage. But
damaged him “appears like an ambushing lion” and bases the halachah if he acted with the permission of a beis din he is exempt because of
that the person who damaged must bring in a paid physician on the “the good of the world” (so that doctors will not refrain from treating
fact that “a physician who is paid nothing is worth nothing.” The Beis their patients because of the fear that they will be made to pay for
Yosef explains that this is because this reasoning can be applied both inadvertent damages). In our case, since the doctor who performed
in the case where the damager wishes to heal the patient himself, as the Caesarean has the permission of a beis din and he is an expert in
well as in the case where the damager wishes to bring in a physician this type of surgery, he is exempt in a human court “for the good of
free of charge. the world.”
We can also add the reasoning that “a physician who heals for
nothing is worth nothing” is more all-inclusive than the assertion that This brings additional proof for our answer in the question above
“you appear to me like an ambushing lion.” The former reasoning can (#2). In the case of the driver who hit a woman and cured her of her
be applied even if the wounded party is a minor or shoteh, who is muteness, since he did so without the permission of a beis din, he is
halachically considered incapable of imaginative thought. The beis din obligated to pay for breaking her ribs.
can claim, even on behalf of a minor or shoteh, that “a physician who However, it is possible to disqualify this proof. The physician
heals nothing is worth nothing.” who made a mistake injured the woman in a way that had nothing
Moreover, the reasoning that the person who damaged him “ap- to do with the act of saving her life through the Caesarean section.
pears to him like an ambushing lion” must be voiced by the damaged Therefore he is exempt only for “the good of the world.” On the other
party himself. If he is silent, the beis din cannot claim this on his be- hand, the driver who hit the mute woman would not have been able
half. However, even if he is silent, the beis din can argue on his behalf to restore her speech had he not knocked her into the air. The Tosefta
that “A physician who heals for nothing is worth nothing.” In fact, if teaches that one must differentiate between an error that actually
the injured party does not know this, we are obligated to claim for caused the saving of life, as in the story of Rabban Gamliel and his
him. As it says (Mishlei 31:8): “Open your mouth for the mute” (as servant, Tavi, and an error due to unnecessary actions. This would
explained in Bava Basra 41a). apply to the driver who hit the woman as well.
The words of the Rambam and the Tur are precise. They both write
that one “does not pay attention” to the person who damaged if he 

66 1 Medical-HalacHic Responsa of Rav ZilbeRstein Removed the Wrong Kidney 2 83

#20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Yellow 20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Magenta 20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Cyan 20818_efi-ab - 20818_efi-ab | 3 - A | 18-08-20 | 13:29:01 | SR:-- | Black #